577 F.2d 86 (9th Cir. 1978), 77-1934, United States v. Winn

Docket Nº:77-1934.
Citation:577 F.2d 86
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Burdette George WINN, Defendant-Appellant.
Case Date:June 19, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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577 F.2d 86 (9th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Burdette George WINN, Defendant-Appellant.

No. 77-1934.

United States Court of Appeals, Ninth Circuit

June 19, 1978

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[Copyrighted Material Omitted]

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M. J. Collins (argued), Newport Beach, Cal., for defendant-appellant.

John P. Newman, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Central District of California.

Before CHOY and WALLACE, Circuit Judges, and TURRENTINE, [*] District Judge.

CHOY, Circuit Judge.

Winn appeals his conviction for making a false statement in his application for a passport in violation of 18 U.S.C. § 1542. We affirm.

I. Facts and Proceedings Below

Appellant applied for a passport at a post office branch in the name of Floyd Porter Bailey. The postal clerk observed that he left twice in order to secure the required photographs and fee, and that he crossed out the social security number he had entered on the application when he discovered it was not required. After the clerk administered the oath of truthfulness, she attached a note to the application describing appellant's suspicious behavior. Appellant's fingerprint on the application matched the

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fingerprint on a California driver's license issued to Floyd Porter Bailey, and Floyd Porter Bailey was in fact the name of a deceased person. The signatures on the driver's license, the passport application, and the photographs attached to the application were all written by appellant.

After his indictment, the court appointed counsel for appellant and a psychiatrist to examine him. He was found competent at a later hearing, and substitution of counsel was approved. The jury found appellant guilty as charged. He was given a suspended sentence and placed on probation for five years. As conditions of probation, appellant was not to drink any alcoholic beverages and was to continue with psychiatric treatment for his drinking problem.

II. Insanity Instruction

Appellant contends that the trial court erred in refusing to instruct the jury on insanity. One basis for the court's decision was that the insanity issue had not been appropriately raised. Fed.R.Crim.P. 12.2(a) provides as follows:

Defense of Insanity. If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, insanity may not be raised as a defense. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

It is not disputed that appellant did not comply with rule 12.2 and that he offered no explanation of cause for failure to do so. Nor did appellant request a continuance or permission to file a late notice, although the matter was brought to his attention by the court and the Government, and he had almost four months in which to do so. Accordingly, we conclude that the trial court properly refused to instruct the jury on the defense of insanity.

Moreover, where a Federal Rule of Criminal Procedure indicates that noncompliance with its provisions will constitute a waiver of future objections based on the subject matter of the rule, no relief from waiver is available on review absent a showing of cause and prejudice. See Davis v. United States, 411 U.S. 233, 242-45, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). Rule 12.2 clearly implies that a defendant who fails to comply with its provisions waives his right to raise an insanity defense. In this case, no showing of cause for noncompliance was even attempted.

Appellant argues that his procedural noncompliance should not waive his substantive right to insanity instructions at trial. The Advisory Committee notes to rule 12.2 make it clear, however, that the purpose of the rule is substantive, not formalistic. It is to give the Government time to prepare to meet a defendant's insanity defense. Once insanity is raised as a defense, the Government must bear the burden of proving sanity beyond a reasonable doubt. Hartford v. United States, 362 F.2d 63, 64 (9th Cir.), cert. denied, 385 U.S. 883, 87 S.Ct. 174, 17 L.Ed.2d 110 (1966); see United States v. Hearst, 563 F.2d 1331, 1336 & n. 2 (9th Cir. 1977). In view of the significance of this burden, justice requires prior notice to the Government of an insanity defense. Rule 12.2 is designed to insure that both the defendant and the Government have ample opportunity to...

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